The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge
In June 2005, Plaintiff, Geoffrey Bant, filed a Complaint (#1) against Defendant, Board of Trustees of the University of Illinois (hereinafter "Board"). The complaint has been amended several times and the Court has previously ruled on a number of motions to dismiss. The only claims remaining in the case are Counts I and II which allege that the Board discriminated against Plaintiff based on sex (Count I) and race (Count II). Federal jurisdiction is based on federal question pursuant to 28 U.S.C. § 1331 because Plaintiff's claims are based on federal law. The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge.
In September 2006, Defendant Board of Trustees filed a Motion for Summary Judgment (#73). After reviewing the parties' pleadings, memoranda, and evidence, and after allowing Plaintiff's request for additional discovery, this Court GRANTS Defendant's Motion for Summary Judgment (#73).
Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling on a motion for summary judgment, the Court must decide, based on admissible evidence, whether any material dispute of fact exists that requires a trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). The party seeking summary judgment bears the initial burden of showing that no such issue of material fact exists. Celotex, 477 U.S. at 323.
The Court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving party may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, she must go beyond the pleadings and support her contentions with proper documentary evidence. Celotex, 477 U.S. at 322-23. A scintilla of evidence in support of the non-movant's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. "In such a situation there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id.
The undisputed facts are as follows: Plaintiff filed a Charge of Discrimination against the University of Illinois on June 14, 2003. Plaintiff's charge states, in pertinent part, as follows: "I want this charge filed with both the EEOC and the State or local Agency, if any. I will advise the agencies if I change my address or telephone number and cooperate fully with them in the processing of my charge in accordance with their procedures." (Charge of Discrimination, #74-2, p. 5.) On January 6, 2004, Catherine Barbercheck filed an entry of appearance with the Illinois Department of Human Rights (hereinafter "IDHR") indicating she was Plaintiff's attorney for the matter designated by Plaintiff's charge. (Entry of Appearance, #74-2, p. 7.) The IDHR sent Ms. Barbercheck a copy of the order of closure on May 17, 2004. (Order of Closure, #74-2, pp. 8-9.)
On February 28, 2005, the Equal Employment Opportunity Commission (hereinafter "EEOC") sent a dismissal and notice of right to sue to Plaintiff and to his designated attorney according to the EEOC records. (Husar aff., #74-5, ¶ 4.) Ms. Barbercheck was apparently the only attorney who had appeared as Plaintiff's attorney at that time. Ms. Barbercheck received the right-to-sue letter on March 3, 2005. (Roberts aff., #74-3, ¶ 16.)
Plaintiff also received his copy of the notice of right to sue, but he now states that it is uncertain when he received it. In a letter to attorney Nile Williamson dated June 10, 2005, he stated that he received it "in February 2005." (Pl.'s letter to Nile Williamson dated June 10, 2005, #74-8, p. 12.) In his first complaint, filed pro se, Plaintiff alleged, "on or about March 3, 2005, Plaintiff received his notice of right to sue." (Comp., #1, ¶ 1.) In subsequent complaints, the complaint alleged that the "right-to-sue letter . . . dated 2/28/05 [was] received by plaintiff within ninety days of filing his pro se complaint on 6/03/05." (Am. Comp., #8, ¶ 8; Am. Comp. modified per Text Order entered 8/11/06, #66, ¶ 8.) Finally, Plaintiff testified in July 2006 that he remembered receiving the right-to-sue letter, but he did not remember what day he received it. (Pl. dep., p. 27-28.)
In a memorandum to Nile Williamson dated June 10, 2005, Plaintiff stated, "I have been working with an attorney, Catherine Barbercheck in Champaign." (#74-8, p. 12.)
Mr. Williamson filed a notice of appearance in this case on June 24, 2005. At the time of his deposition, Nile Williamson represented Plaintiff. At that time, Plaintiff stated that he did not have the original of the right-to-sue letter and testified, "I was dealing with a different attorney [at that time] and it may be in that attorney's possession." (Pl. dep., p. 27.)
Plaintiff filed suit in federal court on June 3, 2005. That filing occurred ninety-two days after Ms. Barbercheck ...